FOIA Post (2009): Summaries of New Decisions -- September 2009

November 3, 2009

Summaries of New Decisions -- September 2009

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of September 2009.

• Litigation considerations: Because plaintiff made a request for records and alleged in his complaint that defendant did not respond to his request within the statutory deadline, plaintiff had standing to bring his complaint before the district court.

• Exhaustion: "Under FOIA's constructive exhaustion provision, [plaintiff] was not required to exhaust his administrative remedies if he did not receive a response to his FOIA request before filing suit. Although the VA established that it had in fact responded to [plaintiff's] FOIA request, [plaintiff] did not receive the response."

• Exemption 5 (deliberative process and attorney-client privileges): Upon in camera review, the court finds that some of the information withheld by DHS does not qualify as deliberative, but instead consists of requests for factual information or requests for assistance or a discussion of what sector of the agency should have responsibility for a task. These are not "deliberative" inasmuch as "no agency policy is being debated or discussed . . . - a task is simply being identified and assigned." As to other documents, the court finds that some of the redacted material was both deliberative and predecisional and its release is likely to chill debate and adversely affect decisionmaking, but other portions were not, as they do not reflect agency deliberations. For other withheld documents, the court is still unable to reach a conclusion due to insufficient detail in defendant's Vaughn index. "Although [defendant] puts much stock in its characterization of this document as a 'draft' containing 'talking points,' that, without more context, such as the attachment's author, recipient, purpose or use, is insufficient to assess the exemption claim." Defendant must submit a revised Vaughn index. For certain draft documents, in camera review established that the document "contains the drafter's personal assessment of possible policy options." According to the court, "[s]uch material clearly reflects 'the personal opinions of the writer' and reveals the 'give-and-take of the consultative process.'" DHS incorrectly applied the attorney-client privilege to one document. The withheld material "is not a privileged communication." Furthermore, "the redacted material does not contain confidential client information, nor does it solicit legal advice."

• Vaughn Index: The court finds the Vaughn submission to be "vague, conclusory and inadequate," even when considered in connection with the unredacted portions of the documents. In camera review resolves some, but not all, of those concerns and so further justification is required. For several documents, defendant needs to provide the court with more information, including the documents' authors, recipients, and role in the agency's decisionmaking process. Moreover, if DHS wishes to continue to withhold these documents, "[it] must provide more detailed information to demonstrate that it has met FOIA's 'segregability' requirement."

Re: Letters of Appointment and Oaths of Office for two Assistant U.S. Attorneys

• Proper party defendant: Only federal agencies, not individual agency employees, are proper party defendants in a FOIA action.

• Adequacy of search: "Plaintiff's contention that the defendant's search was not adequate has no evidentiary support and lacks merit. The agency declaration explains in plain terms that it searched for the requested documents in the only files where such documents are maintained." Plaintiff's assertions that defendant did not adequately explain its choice of where to search or the filing systems themselves are wholly contradicted by defendant's declaration. As to certain records not found by defendant, in one instance there is no evidence that such a record actually exists, and in another instance defendant explained that the records were transferred to a different agency. "The FOIA does not require an agency to search a file that is not in its custody or control."

• Standard of Review: Reverse FOIA cases arise under the APA and are reviewed under the "arbitrary and capricious" standard based on the administrative record available to the agency.

• Exemption 4 (Reverse FOIA): The court "assume[s] without deciding that the information was not submitted voluntarily." "[W]hile it is true that [plaintiff] needs to put forward evidence of actual competition, such evidence need not be of actual competition over these particular contracts. Rather, [plaintiff] need only put forward evidence that it has actual competition and that disclosure of the disputed information is likely to cause it substantial competitive harm in the future." Here, "[w]hile there was technically no competition for these two contracts - since [plaintiff] was awarded them on a sole source basis - [plaintiff] has demonstrated that there remains actual competition over both future contracts with the Air Force and contracts with other countries' air forces. . . ." The court finds that, "[t]hus, [plaintiff] has adequately shown the likelihood of substantial competitive injury as well." Furthermore, the court finds that the Air Force is attempting to hold plaintiff to too high a standard of precision in demonstrating how release will cause it substantial competitive harm. "While the burden is on [plaintiff] to produce evidence indicating that release of pricing information would be competitively harmful, it need not demonstrate precisely how the release of the information would cause competitive harm." Additionally, contrary to defendant's claim, "this circuit has expressly found [the risk that release will give a submitter's customers leverage in negotiations has] the potential to be substantially competitively harmful and therefore a basis for nondisclosure." Plaintiff need not show that its other customers have a bargaining position "wholly comparable" to the government's in order to establish the possibility of losing leverage with these customers. The court notes that "[it] shares the view expressed by some in the D.C. Circuit that such nondisclosure is not the optimal policy course."

• Proper party defendant: Only federal agencies, not individual agency employees, are proper party defendants in FOIA actions.

• Exhaustion: As to some of plaintiff's requests, he has failed to exhaust because he failed to allege that FAA withheld documents or that he appealed where FAA did withhold documents. However, plaintiff has sufficiently alleged that he exhausted his administrative remedies as to defendant's decision to charge search fees as to part of his request.

• Procedural: Though FMCSA previously released in full the type of records it has now partially withheld, plaintiff cites to no authority and "the Court likewise finds none" that prevents the agency from "revers[ing] course now." Indeed, "past practice notwithstanding, the Court has no power 'to require disclosure of materials that are exempt under FOIA.'" Additionally, though defendant relies on these decisions as precedent, "the redaction of limited and specific financial information has little bearing on the FMCSA's or the public's ability to consider the precedential effect of prior decisions." Finally, though plaintiff has argued that defendant's redactions are inconsistent with President Obama's goal of increasing governmental transparency, "[t]he Court is not persuaded that the Obama administration's policy pronouncement somehow alters the application of a federal statute."

• Exemption 4: "The Court easily concludes that the information redacted from the [withheld documents] - e.g., revenue, net worth, [and] income . . . - is financial and commercial in nature because it all concerns the business interests and/or finances of [the submitters]." Moreover, "[b]ecause commercial motor carriers wishing to qualify for self-insurance must submit the type of commercial and financial information at issue, the Court finds it unlikely that upholding the redactions will impair the government's ability to obtain such information in the future." The court further finds that "[a]lthough the FMCSA could have done more to explain how the disclosure of the redacted information could harm the competitive positions of [the submitters]," it "is 'virtually axiomatic'" that release of the withheld information could cause substantial competitive harm to them.

• Litigation considerations: Plaintiff's motion for appointment of counsel is denied. "With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits."

• Adequacy of search: "The district court correctly held that the appellees satisfied their obligation under the Freedom of Information Act . . . to search for records responsive to appellant's requests." Moreover, "appellant did not provide countervailing evidence that raises a 'substantial doubt' that the appellees overlooked responsive material."

• Exhaustion: "It is undisputed that appellant failed to exhaust his administrative remedies regarding his requests for documents . . ., and the district court correctly held that appellant was required to exhaust administrative remedies before filing suit under the Freedom of Information Act."

• Procedural: Defendant "NSA had no obligation to provide appellant with statements 'pertaining to the existence of brainwave technology.'"

• Exemptions 1 & 3/Glomar: "The National Security Agency properly invoked a 'Glomar' response to appellant's request for information pertaining to any surveillance conducted on him."

• Exemptions 6 & 7(C): "Appellant fails to demonstrate that the Federal Bureau of Investigation improperly withheld the names and a phone number of its employees pursuant to FOIA Exemptions 6 and 7(C)."

• Exemption 5 (deliberative process and attorney work-product privileges): "Here, it is plain from the Court's examination of the unredacted memoranda in camera that they were prepared in order to assist the Solicitor of the Department of the Interior in arriving at a decision regarding the Nation's land claim request and are thus predecisonal." The court also finds that the first of the two withheld documents is plainly a draft of the second. "In addition to finding that the memoranda at issue are predecisional, the Court finds that they are also deliberative because they comprise part of the process by which a government decision was made and constituted 'advisory opinions' or 'recommendations.' Both documents contain preliminary legal analysis that is typically protected from disclosure under Exemption 5 as deliberative material." This makes the documents "exactly the kind of records that the privilege is intended to protect." Though agencies "are not required to point to a specific agency decision in order to establish that the deliberative process is involved, in this case, the final agency decision to which these memoranda relate does not appear to be in any dispute." The court further finds that, "even though the documents at issue are roughly thirty years old, it is the Court's view that the passage of time, even as considerable as it may be in this case, does not render the deliberative process covered by Exemption 5 inapplicable."

Defendant also properly applied the attorney work-product privilege to the withheld documents. "The headings, context and substance of both memoranda make clear that they were prepared by or at the behest of counsel to the Secretary of the Interior. Furthermore, both memoranda evaluate the strength of the Nation's land claim under the Non-Intercourse Act and whether Interior should participate in the litigation on the Nation's behalf." Furthermore, "[it] does not matter that Interior did not ultimately participate in such litigation, or whether or not such litigation in fact occurred." It is also irrelevant that the analyses put forth in these memoranda may be utilized by the agency in similar cases.

• Waiver: Interior did not waive the work-product privilege as to the withheld portions of one of the documents by releasing other portions of it. The agency only released factual portions of the document, meaning that the "heightened protection" accorded to "opinion work product" remains intact. Furthermore, in camera review reveals that defendant released "all factual material, not only those that are helpful to their position in this litigation, [while] redact[ing] all legal conclusions."

• Segregation: Finally, the court finds that much of the releaseable factual material contained in the draft document was released in the second document, so the court declines to order Interior to release virtually identical material from the first document, due to the practical difficulties in doing so and because releasing this information "would compromise the private remainder of the [draft] document." To the extent that the factual sections of the two documents differ, disclosing this would reveal part of the agency's deliberative process. Moreover, "the facts as presented by the author of the first memorandum are done in a fashion that 'reveal[s] the "evaluative" process by which [he, as a member of the decision-making chain] arrived at [his] conclusions and what those predecisional conclusions are.'"

• Exhaustion: "Plaintiff has neither committed to paying the fees [that he owes on his request] without conditions the court declines to accept, nor disputed the agency's aggregation decision or sought a fee waiver at the administrative level. Any dispute regarding the fees, the aggregation [of his multiple requests into one], or a fee waiver must first be raised and pursued to exhaustion in the administrative process before it will be entertained in a federal lawsuit."

• Adequacy of search: Defendants "ATF and EOUSA have each filed a sworn declaration in support of their respective dispositive motions, very clearly explaining in detail the searches conducted, the search terms used, and the documents located." Additionally "[e]ach has . . . explained, in nonconclusory terms, why it was reasonable to expect that any responsive documents would be found in the places searched and not elsewhere." The fact that these two defendants each found responsive documents after plaintiff filed his suit does not prove that the searches were inadequate, nor is it evidence of bad faith on the agency's part. Furthermore, "a court's assessment of the reasonableness of the search is based on the totality of the searches conducted, regardless of whether they were conducted before or after the lawsuit was filed." Plaintiff's "assertions that the ATF and EOUSA searches were inadequate are simply not supported by the record evidence and therefore cannot prevail."

• Exemption 5: "There is no need for an in camera review in this case because the EOUSA Vaughn Index includes a description of the documents withheld under this exemption and reveals that the exemption was asserted only as to those documents to which the exemption logically applies. As [plaintiff] has not raised any specific issues of genuine fact with respect to the application of this exemption, his objection does not overcome the good faith accorded the agency declaration supported by an adequate Vaughn Index."

• Exemption 7(A): Because plaintiff has filed a motion under 28 U.S.C. § 2255, which is "a collateral attack on his conviction," it was appropriate for defendants to utilize Exemption 7(A) to withhold documents. "There can be no serious debate that such information is 'compiled for law enforcement purposes,' and it is easy to imagine information of such a nature that its disclosure 'could reasonably be expected to interfere with law enforcement proceedings.'"

• Exemption 7(C): Defendants properly withheld names and identifying information concerning law enforcement officers and third parties. "The Court is aware of no authority supporting [plaintiff's] proposition that FOIA exemption (b)(7)(C) does not apply because his criminal case has concluded, and [plaintiff] offers none." Plaintiff has also "provide[d] no evidence that 'the exact portions' of the specific documents at issue are in fact in the permanent public domain."

• Exemption 7(D): Defendant EOUSA appropriately invoked Exemption 7(D) to withhold the identities of confidential sources and information they provided. The fact that some of these sources allegedly testified against plaintiff at his criminal trial does not mean that Exemption 7(D) does not apply. Furthermore, "[plaintiff] has no way of knowing whether or not [all the confidential sources protected by EOUSA testified against him]; all he could know is that at least some confidential sources testified about some of the information provided." In any event, "[plaintiff] has not '"point[ed] to specific information in the public domain that appears to duplicate that being withheld,'" as the law requires him to do before a court can find that the exemption has been waived by the public domain doctrine."

• Exemption 3: The State Department properly invoked Exemption 3, and the Immigration and Naturalization Act, 8 U.S.C. § 1202(f), to withhold information pertaining to the eligibility of certain individuals to enter the United States. "The statute prohibits disclosure 'not only of the information supplied by the visa applicant, but also any information revealing the thought processes of those who rule on the application.'" The withheld information is covered by the statute because "it was retrieved from a database used to determine visa eligibility." Furthermore, defendant has provided enough information about what was withheld to determine that the Immigration and Naturalization Act applies.

• Exemption 5 (deliberative process privilege): Defendant properly withheld portions of notes taken in preparation for a congressional hearing. Notes such as these "are often made as part of the agency's internal decisionmaking process. . . . As our Court of Appeals has pointed out, notes tend to be 'selective and deliberative," and disclosing them would 'hinder government officials from debating issues internally, deter them from giving candid advice, and lower the overall quality of the government decisionmaking process.'" Defendant is not required to "'demonstrate any specific harm' that would result if the congressional hearing notes were released."

• Exemption 7(E): Defendant also properly invoked this exemption to withhold the hearing notes. These notes "regard investigations of 'criminal wrongdoing and administrative misconduct' by government employees. If the information were disclosed, the targeted employees would be able to 'ascertain [the government's] interest' in and 'thwart or interfere with' the internal investigation."

• Procedural: The court finds that plaintiff has not reasonably described the records sought as to several parts of its request. Plaintiff's request for "'all CIA documents pertaining to . . . [t]he indexing and organizational structure of all CIA Systems of Records subject to FOIA'" is both overbroad and would place an unreasonable burden on the CIA. The request is overbroad because it would require defendant "to search every office for any documents remotely associated with all of its record systems to respond to the request. Such a request is clearly overbroad." Furthermore, "[defendant] would face a massive undertaking if it were required to respond to [this portion] of the request." It would require "the [Information Review Officer] of each directorate . . . to contact every component within its directorate and tailor a search specific to that component's record system configuration." The court finds that "[t]he FOIA was not intended to saddle agencies with this type of burden." As to another part of plaintiff's request, the court finds that its request for "'all internal CIA documents pertaining to . . . [w]hich CIA components are tasked with FOIA requests'" is "both overbroad and vague." This portion of plaintiff's request "fails to identify with particularity which documents are being requested." It "is not really as much a request for records as it is an interrogatory or a question about CIA structure. Such a request is not a proper FOIA request for records." Plaintiff's "request" amounts to "a question about agency organization, and is not a records request." As to another part of plaintiff's request, the court again finds that plaintiff has failed to reasonably describe the records sought. Indeed, "[it] appears to contemplate production of all documents pertaining to all search tools and indices used by the CIA." The court finds that [this portion of the request] "is clearly overbroad and would place an unreasonable burden on the CIA."

• Litigation considerations: The FOIA provides no "private right of action for money damages" and so plaintiff's claim is barred by sovereign immunity. Plaintiff's claim for the correction of records under the FOIA is likewise barred.

• Adequacy of search: Defendant has established, through its declaration and exhibits, that its renewed search for records (which uncovered responsive tape recordings) was or, in the alternative: "reasonable and adequate."

• Exemptions 6 & 7(C): The FBI properly redacted audiotapes it released to plaintiff in order to protect the privacy of third parties heard on the tape. "Persons involved in an FBI investigation, even if they are not the subject of the investigation, have 'a substantial privacy interest in seeing that their participation remains secret.'" By contrast, "[a] FOIA litigant's private interest in obtaining materials for personal reasons plays no part in the required balancing of interests." Likewise, "an individual's desire for information to assist him/her in challenging his conviction " does not qualify as "a public interest under the FOIA."

Re: First party request; request for criminal records and for records pertaining to certain real property

• Exemption claims: The court treated defendant's exemptions claims as conceded where "plaintiff d[id] not dispute the defendant's justification for the redactions, instead maintaining that the released records were not responsive to his request." The court further noted that, in any case, defendant's assertions of Exemptions 2 (low), 7(C) and 7(F) were justified.

• Adequacy of search: The court found "no basis for concluding that the latter search was reasonably calculated to locate all responsive records" where defendant failed to discuss whether the search of a database of seized and forfeited property encompassed all retrievable search terms. Accordingly, defendant's motion for summary judgment on the adequacy of the search was dismissed without prejudice.

• Exhaustion: Plaintiff failed to exhaust his administrative remedies where he verbally requested a copy of a mail processing plan during a labor/management meeting, but never submitted a proper FOIA request for the documents.

• Litigation considerations: Based on plaintiff's failure to submit a FOIA request, the court denied plaintiff's request for leave to amend his FOIA claim "as futile" and dismissed the claim for lack of subject matter jurisdiction.

Re: Request for two progress reports related to the U.S. Special Virus Program

• Litigation Considerations: Following the initiation of litigation, defendant located and released in full one of the requested reports. Because the agency's affidavits established that the search was reasonable and "plaintiff ha[d] not offered any evidence to challenge the reasonableness of the search," defendant was entitled to summary judgment.

• Fee waiver: Defendant waived its right to object to plaintiff's request for a fee waiver where it failed to respond within twenty days of the request. The court further concluded that "Treasury was not excused from responding to the fee waiver request based on a belief that the records requested pursuant to LCCR's Freedom of Information Act (FOIA) request were exempt from disclosure." Additionally, the court commented that, in any event, "[plaintiff] is entitled to the fee waiver on the merits and satisfies the relevant criteria set forth in the DOJ Policy Guidance." Plaintiff's request to be designated as a representative of the news media was denied, however, because "LCCR has not demonstrated that it has properly raised or exhausted such a request."

• Expedited processing: Because "[it] failed to adequately develop the arguments and authority in support of such a request," the court denied plaintiff's request for expedited processing.

• Adequacy of search: BOP's affidavit did not establish that its search for records with respect to plaintiff's request for "a complete list of [the prison's] staff names, along with [the staff members'] titles" was adequate, because it contained conclusory statements that had "no detail" and "fail[ed] to establish the scope or the method of the search." The court finds that BOP's search for psychiatric records was adequate as it is documented and plaintiff has not contested it. BOP's search for "mail sent to or from plaintiff and photocopied by [prison] staff" was adequate because defendant searched the office which serves as "the sole repository of photocopied inmate correspondence." Similarly, the court concludes that BOP's search for telephone records was adequate where BOP asserted that the recorded telephone conversations had been overwritten pursuant to agency regulations and that it also conducted a search for any transcripts of such conversations in the locations which would contain those records. The court finds that BOP conducted an adequate search for information pertaining to plaintiff's claims under the Federal Tort Claims Act when plaintiff did not challenge the search and BOP's "Vaughn Index adequately detail[ed] the scope and method of the agency records search, including the locations searched and the search terms applied." BOP conducted a reasonable search for administrative grievances records where the "staff familiar with the administrative remedy process and the records maintained" searched the appropriate files.

• Exemption 2: The court finds that BOP cannot invoke the "low" aspect of Exemption 2 to withhold recommendations made to prison staff "regarding implementation of appropriate security measures when interacting with Plaintiff" because "[u]nique prison security measures are not trivial matters in which the public holds no genuine interest." However, that information was properly protected by Exemption "high" 2, because "BOP has shown that disclosing such information to Plaintiff could significantly risk circumvention of BOP regulations or applicable statutes." BOP properly withheld inmate base count numbers under "low 2." BOP also "properly redacted shift times, staff names, and staff position titles from Daily Assignment Rosters" under Exemption "high" 2, because "not only would disclosure of the requested information potentially jeopardize the life or personal safety of the staff," but its release could also create a risk of circumvention with regard to agency regulations and statutes "because public or inmate knowledge of [prison] staffing patterns could assist in escape efforts or facilitate other disturbances both inside and outside prison walls." Likewise, "BOP properly applied Exemption 'high' 2 to redact specific times and locations of area shakedowns" for inmate contraband.

• Exemption 5: BOP properly invoked the attorney work-product privilege under Exemption 5 to withhold a list compiled by an attorney for the purpose of defending against plaintiff's tort claim, and the opinions, conclusions and recommendations of paralegals contained in memorandums prepared for BOP Regional Counsel. Statements containing "the opinion of the BOP attorney regarding application of the law to the specific facts of Plaintiff's administrative grievances" also qualify as attorney work-product.

• Exemption 7/threshold: "The Court has no doubt that BOP is, indeed, a law enforcement agency" and that its "personnel are hired to enforce the law."

• Exemption 7(C): The court determined that "the public interest in [inmates' names, register numbers, housing statuses, and medical information] fails to outweigh the privacy expectation of [the institution's] inmates" and, accordingly, BOP appropriately redacted that information under Exemption 7(C). With respect to a request for "Shakedown Logs," the court found that "while the public may hold some interest in the names of [prison] inmates from whom contraband is confiscated, . . . such an interest is outweighed in this case by concerns for privacy and personal safety."

• Exemption 7(E): BOP properly asserted Exemption 7(E) to withhold photocopied inmate correspondence contained in an internal investigative file. Since BOP only photocopies and maintains certain pieces of the inmate correspondence that it monitors, the court determined "that ordering the release of photocopied mail contained in Plaintiff's SIS file would disclose techniques for law enforcement investigations that could reasonably be expected to risk circumvention of the law." The court finds that "[it] is not required to make any particular finding of harm or circumvention of the law when evaluating" Exemption 7(E)'s applicability to law enforcement techniques.

• Exemption 7(F): BOP properly invoked Exemption 7(F) to withhold a prison staff roster because the release of the names and titles of staff members "could endanger the life or physical safety of any or all of the named employees." BOP's assertion of 7(F) to redact the identities of federal inmates named in a "Shakedown Log" was appropriate.

• Fees: Plaintiff's preference to receive the records pertaining to his prosecution on CD-ROM does not obviate his obligation to pay fees because the requested records only exist in a paper format and "the duplication fees for paper documents apply regardless of the final format of the duplicated documents." Moreover, "[b]ecause Defendant DOJ is entitled to collect advance fees when anticipated reproduction costs exceed $250, and because Plaintiff failed to pay the fee or reformulate his request, DOJ was not required to respond to Plaintiff's FOIA/PA request."

• Attorneys fees: The court denies plaintiff's request for litigation costs and fees. "As a preliminary matter, nonattorney pro se litigants are not entitled to receive an award of attorneys fees pursuant to 5 U.S.C. § 552(a)(4)(E)." Moreover, as to litigation costs, which may be awarded to such plaintiffs, "BOP's voluntary disclosures do not provide any significant public benefit," and there was no evidence of bad faith on the part of the agency. The court finds, "[o]n balance, . . . that the voluntary disclosure [made by the agency] was insubstantial and Plaintiff is not entitled to recover any litigation costs."

• Exemption 7(C): The court agrees with AT&T that "the FOIA's text unambiguously indicates that a corporation may have a 'personal privacy' interest within the meaning of Exemption 7(C)." In reaching this decision, the court reasons that the plain text of the FOIA defines the term "person" to include corporations, and that the term "personal" is "the adjectival form of 'person.'" The court further notes that "the FOIA exemptions indicate that Congress knew how to refer solely to human beings. . . when it wanted to" and "[y]et, Congress, in Exemption 7(C) did not refer to 'the privacy of any individual' or some variant thereof; it used the phrase 'personal privacy.'" The court, however, disagrees with AT&T's position that "as a matter of law, the invasion of personal privacy caused by the release of the documents the company submitted to the FCC could reasonably be expected to be 'unwarranted' within the meaning of Exemption 7(C)." Instead, the court remands the matter to the FCC to determine in the first instance whether disclosure of the records at issue would "constitute an unwarranted invasion of personal privacy."

Re: First party request; request for various records pertaining to himself from different agencies; and request for specific records related to Whitewater investigation from NARA

• Adequacy of search: The court concludes that the agencies conducted a reasonable search where plaintiff "provided no evidence to contradict the various agency affidavits, which attested that each agency had conducted a review for relevant documents and either did not find relevant documents or produced all responsive documents" to him. Plaintiff's claim that agencies' affidavits contained "ambiguities" was unfounded where the "declarations unambiguously stated that their searches did not reveal any relevant documents." Similarly, plaintiff's unsupported claim that a written record of the requested items existed was not sufficient to call into question the adequacy of agencies' searches. Additionally, NARA was not required to conduct a second search for responsive records "because it had already searched its only available computerized index of over 700 boxes of documents, which did not reveal any reference to [plaintiff]."

• Mootness: Because BOP established that it "ha[d] released in full the records that plaintiff requested," the case is moot.

• Attorney Fees/Costs: The court concludes that an award of costs is not merited in this case. BOP's disclosure of the requested information was delayed and BOP "does not explain the delay" thereby precluding the Court from determining whether "its actions were reasonable." The release of records appears to have been made "only after plaintiff filed this action" and plaintiff therefore has demonstrated that he "'obtained relief through . . . a voluntary or unilateral change in position by the agency." He fails, however, to establish that "his 'claim is not insubstantial.'" Plaintiff's "interest in and intended use of the information appears to be personal" and "[t]his is not a case where the public derives some benefit from plaintiff's claim or the BOP's release of the information plaintiff requested."

• Exemption 5/"intra-agency" or "inter-agency" threshold: The court concludes that "[t]o the extent the withheld materials reflect communications between ODNI and DOJ and members of Congress in an effort to facilitate Congress' own deliberative process to craft legislation to reform FISA, these communications do not fall under the exemption as there is no evidence that they were used in an effort to aid any agency in its own deliberative process." With respect to communications between agency officials and telecommunications representatives regarding liability issues, the court finds that "[t]hose documents are not protected from disclosure because companies communicated with the government agencies 'with their own . . . interests in mind,' rather than the agency's interests." Since the threshold of Exemption 5 was not met, the court did not address defendants' arguments regarding the application of specific privileges.

• Exemption 6: While the court finds "some, although not substantial, privacy interest in the withheld documents indicating the identities of private individuals and entities who communicated with ODNI and DOJ in connection with FISA amendments," it ultimately concludes that "the public interest in an informed citizenry weighs in favor of disclosure."

Re: Records related to plaintiff's investigation for murder and certain named third parties

• Exemption 2: Based on an in camera review of four documents, the court determines that the FBI properly asserted Exemption 2 to withhold confidential source symbol numbers because "such information is administrative in nature and is of no genuine public interest."

• Exemptions 6 & 7(C): The FBI properly withheld names and identifying information of third parties mentioned in the records pursuant to Exemptions 6 and 7(C) in light of the "significant" privacy interests involved. In terms of the public interest, plaintiff did not present "sufficient evidence for the Court to question the FBI's performance of its duties" where plaintiff's attorney alleged that "25 years ago the FBI failed to produce what he [and his client] now believe is exculpatory material, based on evidence they have developed since the trial." With respect to certain surveillance photos, the court orders the FBI to release the images if the copies reviewed in camera "are in fact accurate reflections of the photographs as they exist in the FBI's files" given that it was "unable to discern any identifying information" in the copies and therefore "no privacy interest is protected by withholding them." However, the court adds that the FBI could continue to withhold those photos "if the lack of identifying details in the copies of the photographs" was due to poor photocopying and "the actual photographs . . . contain such information."

• Exemption 7(C) (Glomar): The FBI properly refused to confirm or deny the existence of any responsive records related to three named third parties alleged to be the "'real perpetrators'" of certain murders, because the information sought would be contained in "criminal investigative files" and "for the FBI to confirm that it maintains records relating to these individuals would thus associate them with criminal activity." The court comments that "it is irrelevant that 25 years have passed since the 1983 murders and investigation, as the passage of time does not necessarily diminish privacy interests." Additionally, the fact that those named individuals "may have been convicted of other offenses does not negate their interest in keeping their involvement, if any, in the investigation of different crimes secret." There is no public interest in the release of this information because plaintiff's attempt to overturn his conviction represents a personal, not a public, stake in the records.

• Exemption 7(D): After conducting an in camera inspection, the court finds that "the majority of the material withheld under Exemption 7(D) was provided to the FBI pursuant to express assurances of confidentiality or under circumstances strongly implying that an assurance of confidentiality was understood."

Segregability: Upon reviewing certain records in camera, the court orders the FBI to release certain "nonexempt, segregable information" which had originally been withheld pursuant to Exemption 7(C). The court also orders that the FBI produce additional segregable portions of a record withheld under Exemption 7(D) and other exemptions where it "was unable to determine what, if any, material in this part of the document came from [a confidential] source."

• Adequacy of search: The court affirms and adopts in its entirety the magistrate's report and recommendation, which was uncontested by plaintiff, on the basis that it was not clearly erroneous. According to that report, EOUSA conducted a reasonable search where it queried an automated case database, searched the plaintiff's criminal case file, and contacted attorneys and legal/administrative staff to ascertain whether any files were opened under plaintiff's name. Additionally, in the report, "the magistrate judge held that plaintiff's allegation that the United States' search was not reasonable because it did not furnish certified copies of Miller Act contract and payment bonds is without merit" because "there are no [such] bonds payable to the defendant."

• Litigation considerations: "Plaintiff's failure to object to the magistrate judge's proposed findings and recommendation bars the plaintiff from appealing the judgement of this court."

Re: First party request; records related to his questioning at airports before or after his international trips

• Attorney Fees: Plaintiff was "not eligible for an award of attorneys' fees and costs because he did not 'substantially prevail'" under the terms of the attorney fee provision of the FOIA that antedated the OPEN Government amendments. The court finds that the "judicial order" which plaintiff cited as the basis for an award "was procedural in nature and did not change the relationship between the parties." Moreover, the court observes that "assuming, arguendo, that Plaintiff is eligible for an attorneys' fee award, Plaintiff is not entitled" to such an award due to the lack of public benefit derived from the release of the records, plaintiff's primarily personal interest in the documents, and the government's "colorable basis in the law for withholding the records" despite agency delays. The court further opines that even if plaintiff were eligible and entitled to fees and costs, the amount requested was unreasonable. "Plaintiff offer[ed] no authority in support of his application of a 'production factor to calculate his request'" and he "appear[ed] to include hours for legal work as to which he was not successful."

Re: Request for records relating to USDA's investigation of a private research facility

• Exemption 4: Aided by expert testimony, the court determines that the defendants "carried their burden of demonstrating that there is actual competition in the contract research business among [contract research organizations] that provide toxicology research to secure study sponsors, and there is actual competition in the pharmaceutical industry to be the first to get a particular type of drug to market." However, the court concludes that defendants did not establish that disclosure of the 1017 pages of withheld records had a "likelihood of causing substantial injury to [the facility] or its clients." The defendants' argument that the facility would suffer harm because "their customers or potential customers would perceive disclosure as a breach of [the facility's] confidentiality agreements" "does not satisfy their burden under Exemption 4." Similarly, the court finds unpersuasive defendants' "'[c]onclusory and generalized allegations'" that competitors could use the records at issue to identify standard operating procedures or the chemical compounds tested at the facility. Although the experts' testimonies "established that there are at least two potential ways competitors might be able to use the information likely to be found in the records at issue, neither related competitors' potential uses of information to the specific records at issue with sufficient detail to establish by a preponderance of the evidence that competitors of [the facility] or its clients are likely to use the particular records at issue to cause substantial harm to [the facility] or its clients."

• Segregability: Defendants failed to demonstrate that all reasonably segregable nonexempt information was released. Neither the Vaughn Index, nor the trial testimony of two experts "provide[d] any analysis as to whether all information that could not be used by [the facility's] or its clients' competitors for commercial advantage ha[d] been reasonably segregated from any of the 1017 pages." Accordingly, the court orders USDA to release all the records that had been previously withheld either in whole or in part, after redaction of the information that plaintiff no longer contested.

• Litigation considerations: Intervenor defendant, "after more than four years of litigation and two rounds of summary judgment where it conceded that the USDA obtained the documents at issue involuntarily," is now "judicially estopped" from arguing that the documents were voluntarily provided.

Re: Request for videos of perpetrators and autopsy photos of victim used in the prosecution of a federal death penalty case

• Exemption 7(C): EOUSA properly withheld autopsy photographs of a federal inmate who was murdered in prison pursuant to Exemption 7(C). The court finds that the family of the murdered inmate, his sister and aunt, maintained significant privacy interests in the photos which "show, in detail, the exceptionally heinous nature of [his] injuries." The court observes that "[g]iven the graphic nature of the photographs, public dissemination of these images could impede the family's ability to mourn [his] death in private and achieve emotional closure." The court finds the public interests asserted by plaintiff unavailing, i.e. "(I) allowing the public to be fully informed about the circumstances of [the inmate's] murder; and (ii) allowing the public to scrutinize the circumstances under which the government pursued the death penalty." First, "there is nothing that directly links the circumstances of [the inmate's] death to a governmental activity." Second, "there is no showing that some aspect of the photographs caused, influenced, or particularly impacted the government's decision to seek the death penalty." Accordingly, the survivor's strong privacy rights outweigh any public interest in disclosure of the records. Using a similar rationale, the court determines that BOP properly withheld "section one" of a video, which depicted the inmates actions within the prison cell following the murder. The court concludes that the survivor's have a "strong privacy interest similar to that which they have in the autopsy photographs" because the victim's "body and injuries are clearly visible." With respect to plaintiff's articulated public interests, the court finds that "the size of the cell, the timeliness of the response of BOP officials, and the government's decision to seek the death penalty relate to governmental activity," but on balance "[did] not outweigh the family's privacy interest" in the information. The audio portion of this section, to the extent it contains statements of BOP officials, should be disclosed. The court notes that "section two" of the requested video depicting "BOP's treatment of [the inmates] during and after their removal from the cell" "falls within the scope of FOIA because it depicts the government's operations with respect to dealing with [the inmates] after the murder." To the extent that the video showed the inmates undressed, the court holds that those portions "should be electronically or otherwise obscured to preserve their privacy interests."

• Public domain: The "use of autopsy photos and videos at the [inmates' murder] trials does not negate the application of Exemption 7(C)." The court reasons that since the "family members of a murder victim do not decide whether a trial occurs nor control the selection of evidence to be admitted," "the presentation of evidence in which they have a privacy right at a criminal trial would not constitute a waiver of their rights." Additionally, the court observes that the limited public disclosure of the death scene evidence at trial is "vastly different" than the release of the same material under the FOIA which "is absolute, unrestrained and perpetual."

• Attorney Fees/Costs: Plaintiff's motion for costs was denied. The court concludes that this case is governed by the older, more restrictive attorney fees standard that applied before the OPEN Government Act went into effect. Here, plaintiffs were not entitled to recover costs because one plaintiff "actually lost a judgement on the merits" and the other "filed the instant motion for voluntary dismissal without ever obtaining a judgment, or a consent decree, in his favor."

• Adequacy of search: Defendant ATF has shown that its search for records was reasonable. ATF's declaration indicates that it searched in "the most likely place where records would have been located." Plaintiff asserts that ATF should have searched additional locations, "[b]ut ATF is not required to search every conceivable place where a record might be found, particularly when the request does not mention where responsive documents might be located." As to defendant EOUSA, the declarations submitted do not provide enough information for the court to determine whether EOUSA's search "was reasonably calculated to locate all of the responsive records sought by [plaintiff]."

• Exemption 3: Defendant EOUSA properly invoked Exemption 3, through Rule 6(e) of the Federal Rules of Criminal Procedure, to withhold a copy of a grand jury subpoena issued to plaintiff, "because its disclosure would reveal secret information about the scope of the grand jury's investigation." The fact that the trial in question is now over is irrelevant, as "there is no time limit on Rule 6(e)." Plaintiff has not shown that the subpoena he requested has entered the public domain.

• Exemption 7(C): "The fact that a witness testifies publicly at trial does not diminish or waive his privacy interest. . . . Accordingly, [the witness] has a strong privacy interest in protecting from disclosure any records that may describe his cooperation with DEA." Plaintiff "has failed to assert any public interest in favor of disclosure."

• Exemption 7(D): Records pertaining to the confidential informant who testified against plaintiff are also protected pursuant to Exemption 7(D). "Under Exemption 7(D), any information that a law enforcement agency receives from a confidential source in the course of a criminal investigation is protected from disclosure. . . . Moreover, this protection continues even after a source has been publicly identified, and the agency does not waive its right to assert this exemption when the confidential source testifies in open court."

• Waiver: Though plaintiff is correct that an agency may not protect "'information that has been "officially acknowledged" or is in the "public domain,"' . . . plaintiff in such instances bears the initial burden of 'pointing to specific information in the public domain that appears to duplicate what is being withheld.' . . . This burden of production is substantial, requiring the plaintiff to identify the exact portions of the permanent public record he wishes to obtain." While plaintiff "has produced excerpts from transcripts of his trial to show that the documents he is seeking may actually exist, he has not shown that these documents were entered into evidence at trial or otherwise formally enshrined in a permanent public record."

• Exhaustion: Though the DEA asserts that plaintiff was required to "provide a certificate of identity with an original notarized signature," relevant DOJ regulations do not require the use of a notary. Instead, plaintiff substantially complied with the regulations by certifying under penalty of perjury that he was the individual about whom records were being requested as well as by providing certain personal information about himself. However, plaintiff did not specify which DEA records system or office he believes maintains records on him. "The DEA demonstrates that plaintiff's failure to identify which record system to search or which office might maintain responsive records would require the agency to conduct searches agency-wide." As such, "[p]laintiff's FOIA request does not reasonably describe the records sought and, therefore, is not a proper FOIA request." Because plaintiff has not submitted a proper request, he cannot be said to have exhausted his administrative remedies. Plaintiff's failure to specify the amount of fees he would be willing to pay "is an insubstantial flaw." Under DOJ regulations, "[s]ubmission of the FOIA request itself is considered an agreement to pay up to $25.00 in search and duplication fees."

• Exemption 2 (high): "The Court concludes that the agency adequately explains that the administrative codes [it withheld] relate to law enforcement and intelligence matters, that the codes are predominantly used for internal purposes, and that their disclosure may risk circumvention of the laws and regulations it is obliged to enforce."

• Exemption 7(C): Defendant Coast Guard properly withheld the names of and information concerning government employees, crew members, and other third parties. Plaintiff has identified no cognizable public interest to offset the substantial privacy interests at stake, even as to the identity of the lead officer on the investigation. "[A]ny personal interest plaintiff may have in [this] individual's identity does not qualify as a public interest favoring disclosure."

• Proper party defendant: "[T]he FOIA does not permit claims against individual federal officers," but only against federal agencies.

• Exhaustion: As to one of his requests, plaintiff produced a letter denying his administrative appeal of the agency's initial response, thereby establishing that he exhausted his administrative remedies.

• Litigation considerations: Because the FOIA qualifies as a statute which provides a "'comprehensive system to administer public rights,'" the remedies it provides are the sole ones available to plaintiff. He cannot maintain a Bivens action for alleged refusal to release records.

• Adequacy of search: DEA's declaration has established that defendant searched for responsive records in the databases "likely to contain information responsive to plaintiff's requests." The declaration also provides sufficient detail as to "the offices, dates, methods, and results of the searches conducted."

• In camera review: Given the adequacy of defendant's declaration, as well as the lack of any evidence of bad faith on the agency's part or substantial public interest in further review of the withheld records, the court declines plaintiff's motion for in camera review.

• Exemption 6: DEA properly withheld the curriculum vitae of a lab analyst it consulted in connection with plaintiff's criminal case. This record "is a personnel record and is not relevant to the information the plaintiff seeks."

• Exemption 7(C): Plaintiff has not established a public interest in release of the names of DEA laboratory personnel or Immigrations and Customs Enforcement Special Agents sufficient to overcome the substantial privacy interests these individuals have in protecting their identities. Plaintiff's interest in challenging his conviction does not qualify as a public interest under the FOIA.

• Adequacy of search: Defendants' declarations establish that their searches for responsive records were adequate and reasonably "calculated to locate all relevant documents." Plaintiff has not produced any evidence that would create a question of material fact on this issue. Though as to some of his requests, he insists that additional records exist, he "offers no suggestion as to where else these agencies might have looked for his records or what other search criteria should have been used."

Re: Request for compensation agreement between United States and European Union

• Attorney fees: Plaintiff is not entitled to an award of fees because the agency's initial decision to withhold the responsive records had a sound legal basis. The agreement plaintiff requested was properly classified pursuant to Executive Order and was therefore properly withheld under Exemption 1. Despite plaintiff's claims to the contrary, the document constituted "foreign government information" inasmuch as international agreements provide that member states not release compensation agreements while negotiations were ongoing. Furthermore, defendant's classification authority "has sufficiently identified and articulated the harm that could have resulted from" disclosure of the proposed compensation agreement while it was being negotiated. Thus, defendant's eventual decision to disclose the agreement after negotiations were completed did not entitle plaintiff to a fees award.

• Exhaustion: As to portions of plaintiff's Complaint, "there is no factual allegation that he properly submitted an initial FOIA request for those documents. As a result, plaintiff has failed to exhaust his administrative remedies."

• Exemptions 2, 3, 5, 6, & 7: "[T]he Court concludes that the defendants are entitled to summary judgment because plaintiff has wholly failed to adduce any evidence raising a genuine dispute as to defendants' compliance with FOIA."

• Adequacy of search: The court finds that DOD's search for responsive records was not adequate. DOD has not justified its decision to restrict its search to those databases pertaining to housing, care, feeding, and security of the detainees or its decision to search only certain components of DOD. Furthermore, DOD incorrectly asserts that it was not required to disclose certain audio and video recordings of the detainees in question because these recordings are publicly available. DOD is ordered to correct the deficiencies in its search. Additionally, DOD failed to support its assertion that searching for records other than those indexed by unique identifying information would be "'unduly burdensome.'" DOD "therefore must either search these records or demonstrate why it would be impractical to do so." DOD has satisfied its burden of identifying the files it searched and describing the general structure of its filing system.

• Litigation considerations: DOD's Vaughn Index is insufficient for the court to rule on the propriety of the agency's withholdings. "The Department merely lists the asserted exemptions by document. The Department does not 'subdivide the document[s] under consideration into manageable parts cross-referenced to the relevant portion of the government's justification.' . . . Nor does [the Index] describe how the asserted exemptions apply to the withheld documents." These problems are not "cured by [DOD's declarations]. Those declarations, like the Vaughn index, do not explain with the necessary detail how a particular exemption supports the Department's decision to withhold a responsive document. . . . Rather, the declarations simply assert, in general terms, the justifications for withholding documents." Though "the Court can certainly imagine that the asserted justifications may be valid as to some of the withheld records, it cannot conclude they are categorically valid as to all withheld records." As a result, "the Department has not provided this Court with sufficiently detailed explanations of why the claimed exemptions are relevant, and correlated, to the withheld records."

• Litigation considerations: "The record submitted does not permit the Court to determine exactly which exemptions [apply] to which redacted portions of which documents [plaintiff] challenges. The information submitted by the Marshals Service in its Vaughn index, together with its declarations, is insufficient to support a determination that the Marshals Service has justified its nondisclosure decisions." The parties are ordered to confer as to what matters remain in dispute, and then defendant will be required to submit materials identifying precisely what exemptions have been applied to each redaction as well as justifications for their use.

• Litigation considerations: The court finds that defendants have disclosed in full the documents requested by plaintiff. Thus, because plaintiff has not challenged the adequacy of defendant's search, there is no longer any matter in dispute between the parties.

• Adequacy of search: The court finds that FBI's pre-lawsuit search for records was not adequate. "Where, as is the case here, the requester submits additional information to supplement the initial request, the agency is obliged to incorporate that information in crafting the scope of its search." Plaintiff has been able to establish the likelihood of responsive records existing in at least one database defendant had not searched. As to part of its more recent searches, FBI did not identify the search terms it used. Additionally, FBI's declaration "sheds no clear light on how the FBI went about conducting a search of handwritten notes, personal files, or restricted files." As to another portion of the search, FBI only searched under plaintiff's full name, and not for "other permutations of the name, and therefore the search was not reasonably calculated to turn up all responsive files."

• Procedural: The FBI has inappropriately refused to produce a file requested by plaintiff. FBI's claim that the file does not pertain to plaintiff is irrelevant in light of the fact that plaintiff clearly indicated his interest in the file regardless of whether it concerned him in particular.

• Exemption 2 (high): The court finds that the accident scenario documents at issue do not constitute documents related solely to the internal personnel rules and practices of the agency. Instead, the documents are "designed to establish and discuss the safety of the ATR and its continued operation." To treat these as documents related solely to internal personnel rules and practices would give an unwarranted breadth to Exemption 2.

• Exemption 7 (threshold): The court disagrees with DOE's claim that the accident scenario documents currently constitute law enforcement records. The documents were originally produced as part of an effort to demonstrate the safety of the ATR. Accepting DOE's argument that they are now being used as part of DOE's law enforcement responsibility to protect the ATR would allow DOE to withhold virtually any document in any way connected to the ATR. Such a result would be contrary to the FOIA's intent. DOE is ordered to provide the documents for in camera review along with an expert who can analyze them for the court so that the court may determine if any portions of the documents qualify as law enforcement documents.

• Supplemental Order: After in camera review done in consultation with experts, DOE is ordered to release the withheld documents in part. DOE "will be allowed to redact specific details pertaining to the location of certain systems or equipment and their identifiers where such redaction will not meaningfully interfere with Plaintiff's independent review and analysis of the subject documents." Additionally, DOE "will be required to submit a separate redaction log to the Court under seal. Any such redaction log will separately identify each redaction made and shall provide the Court with an explanation of why the particular redaction is necessary." The Court retains jurisdiction to hear any objections plaintiff has to any further redactions by DOE.

• Exhaustion: As to plaintiff's third-party requests, he did not provide the necessary privacy waivers until long after his administrative appeal of his initial request. Because defendant has not had sufficient time to "'authenticate the privacy waivers and begin its search for the third-party information,' . . . it would be premature at this juncture for the court to interfere with the agency's efforts to respond to the plaintiff's requests." Thus, this portion of plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.

• Litigation considerations/adequacy of search: Defendant's declarant failed to attest that she had personal knowledge of defendant's search or that she relied on information provided by the individuals who actually conducted the search. Thus, the court cannot grant defendant summary judgment on the adequacy of its search. (posted 11/03/2009)